The Gazette 1991

GAZETTE

JULY/AUGUST 1991

Code stipulates that the partners

of an MDP have to respect the

functions reserved to certain

professions (the giving of legal

advice except in tax matters and

the appearance in certain courts

are reserved to lawyers by

statute, auditing is a function

reserved to auditors by statute

- these restrictions also apply

in MDPs).

Statistics on MDPs do not

exist either for Germany or the

Netherlands, but it is estimated

that less than 10 per cent of

partnerships in Germany are

MDPs.

MDPs have existed in both

Germany and the Netherlands

since the early seventies and in

both countries for a longer time

with the related profession of

notaries.

In both countries there are no

plans to abolish them.

Both countries report that so

far they have had no problems

with MDPs.

MDPs are prohibited:

(a) by statute in Ireland (for

solicitors), France, Greece,

Luxembourg, Portugal and

Sweden (in Sweden with the

possibility of exemption by

decision of the Board of the

Swedish Bar Association).

(b) by rules or regulations set up

by the Law Society or a

similar body in Ireland (for

barristers), France, Denmark,

Luxembourg,

Belgium,

Norway and Finland.

(c) Luxembourg also refers to

unwritten rules and tradition

and Belgium to bar decisions

on the independence of

lawyers.

Ireland,

Greece,

Luxembourg, Portugal, Belgium

and Sweden there is no

discussion about the intro-

duction of MDPs.

There is a discussion in

France, but MDPs have been

rejected.

There is little discussion in

Denmark. The argument in

favour of the admission of MDPs

is the advantage of one-stop-

shopping for the client. The

opponents argue that MDPs

might jeopardise the inde-

pendence of lawyers.

The discussion of MDPs in

Norway is similar to the one that

took place in the United

Kingdom.

MDPs have been discussed in

Finland. An argument made

there in favour of MDPs is that

they would facilitate the

cdmpetition against financial

institutions. The argument made

there against MDPs is that the

different code of ethics, the fee-

regulations and the preservation

of the personal client-lawyer

relationship might lead to

difficulties.

In all articles on MDPs, the

Netherlands and Germany are

mentioned as the countries in

Europe which allow MDPs, but it

is important to understand the

background against which these

MDPs exist.

In Germany, there are

principles of reserved functions

for the various professions. An

MDP must honour this principle.

Therefore the partner from each

discipline only does work which

is reserved by statute to that

discipline. There is, therefore,

very little overlapping of

f unc t i on. No such clear

demarcation exists in Ireland

"In Germany, there are

principles of reserved

functions for the various

professions."

where accountants, for example,

practice in many quasi-legal

areas.

An MDP (with some parties),

such as exists in Germany,

would not necessarily operate in

such a distinct manner in Ireland,

where the lack of demarcation of

services would undoubtedly

cause certain difficulties.

In the Netherlands, MDPs are

not permitted between auditors

or accountants and lawyers. The

MDPs which are allowed in the

Netherlands are restricted to

notaries, patent lawyers and

other independent professions

who have disciplinary rules

comparable to the rules

pertaining to lawyers. It would

therefore be dangerous to

believe that the experience of

the Netherlands would be

relevant to a general system of

MDPs which would encompass

such diverse professions as

lawyers and accountants.

United Kingdom Comparisons

In the United Kingdom, MDPs

Denis C. Guerin

New York A t t o r ney at Law

6 2 43 Br oadway Suite A 26

Riverdale, New York 10471.

Native Killarney, County Kerry.

Solicitor, Incorporated

Law Society of Ireland, 1981.

Legal a d v i ce a nd a s s i s t a n ce in

t he USA. C o n t r a c t s, Wills, Trusts,

Personal Injury, C o r p o r a t i o ns etc.

Call:

Days (212) 3 4 9 - 6 7 7 5

Evenings: (212) 7 9 6 0 9 7 0

Fax: (212) 9 6 2 0 9 8 4

are allowed under statute but

both the Bar Council and the

Law Society of England and

Wales have the power to decide

w i t h whom solicitors may

practise.

In practice, therefore, the

English/Wales Law Society can

control the entire position in

regard to MDPs. In addition, the

Courts and Legal Services Act

has permitted litigation and

advocacy to come under

separate distinct rules. In

Scotland, the professional rules

have been much more difficult to

challenge.

At the moment, MDPs do not

appear to be on the agenda for

discussion by the Scottish Legal

Profession.

In Northern Ireland, the

situation of MDPs has not been

progressed. At the moment a

consultation paper has been

prepared but there has not been

great impetus toward change.

CCBE

No decision has been taken,

either for or against MDPs by the

CCBE (Association of European

Bar Associations). However,

much work has been done to

prepare the groundwork for the

debate. Examination is being

undertaken by the CCBE as to

the problems incurred. Addition-

ally, a set of draft rules is being

drawn up which will allow a

more concrete discussion to take

place.

Principal Arguments in favour

of MDPs

The principal arguments for

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